This question again comes from a volunteer with the NSW RFS. In answering this question we are moving away from law (which I define as the law set out in an Act of Parliament or its regulations, or the binding judicial decisions of higher courts) to matters of internal policy and management. Having said that the power of the Commissioner to set service standards, and the obligation on members to comply with them, are both governed by law (Rural Fires Act 1997 (NSW) s 13 and Rural Fires Regulation 2013 (NSW) r 9). The question is:
I own and operate a company which produces equipment for emergency services (primarily fire, but also SES and the like) in Australia. I am also a member of the NSWRFS and that is also the biggest market.
My questions are –
1) what are the rules with third parties like myself having an agencies uniform in photos/advertising (ie, photos sent in by users in the field featured on Facebook pages and the like) – should I be blurring crests?
2) I’m always very conscious – mainly because of my own business ethics and the difference in my head between when I’m “in uniform” and “at work” – about talking too much/ “making sales” when deployed on Regional Response Groups or interstate deployment. Are there rules about this?
3) Also, in the chance that myself or an employee are volunteering with a service (or employed for that matter!) and that service is interested in issuing our gear to its members – is there a conflict of interest in either party? (This may also apply to tradies, IT and other people doing work for services at any level)
As noted before there is no property in a spectacle; see
- Lifesavers as law enforcers? (July 6, 2014) and
- Taking photos whilst on duty with the NSW RFS – amended (October 26, 2013).
That means if a photo was taken of fire fighters at work and the photo was taken from a public space there can be no issue. I won’t address the issue of ‘users in the field’ (ie firefighters) taking photos when on duty, for that discussion see the post referred to above.
The issue here is why you are using their photo – are you trying to imply an official endorsement? The Australian Consumer Law (a schedule to the Competition and Consumer Act 2010 (Cth)) says, at cl 18: ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.’ Note that you do not have to intend to mislead or deceive, if the conduct is likely to have that effect, it is illegal.
Using photos that show the logo of the RFS, or any other agency, could be misleading or deceptive if it was intended to imply, or could give rise to an inference, that the service was giving some endorsement to your product that they are not giving. Of course if they have bought the kit, and use it, that is an endorsement of sorts and merely capturing that is not misleading and deceptive, it’s true – here’s a photo of the RFS using our widget. Equally if you have photos of appliances from four services, each with your widget on the appliance, and you say ‘our widget is used by these Fire Services’ that’s not misleading and deceptive because, again, it’s true. If the services don’t like that they may not buy your widget again and you may be in breach of some terms of the contract if they have a provision that says you can’t use their images to promote your product. To return to my starting point, if the intention is to suggest, or it the photo is likely to cause others to believe, that the RFS is actively endorsing your product, beyond the truth that they do in fact use it, then trouble may follow.
There can’t be an intellectual property issue. Again there is no property in a spectacle so you can take a photo of someone in uniform and use it in the press, online etc all without needing to get their permission. One need only think of any news story involving the emergency service, sport teams, anyone in uniform etc. The news service is using the image to sell their product (‘the news’) and to make money from that but they still don’t need permission. The difference is that no-one would think that the RFS was ‘endorsing’ the TV News service because there is image of firefighters; but one may form a different view if the picture appears in the advertising brochure for a piece of kit. That example is intended to show that the issue is not one of intellectual property in the image or the logo, but the impression that is being created.
There is also an offence in the State Emergency and Rescue Management Act 1989 (NSW). Section 63B(2) says:
A person who:
(a) uses or displays emergency services organisation insignia …
with the intention to deceive is guilty of an offence.
The issue here is still an intention to deceive so it adds nothing to the discussion of the Australian Consumer Law. Section 63B(2) would be relevant where the deception was not taking place ‘in trade and commerce’.
It follows that if the use of the photo is misleading or deceptive, or likely to mislead or deceive, then its use is illegal; otherwise it is not.
The answer to this question is really found in the RFS Code of Ethics so details of what is expected should be sought from RFS officers. Service Standard 1.1.7 Code of Conduct and Ethics says, at [4.1]:
A conflict of interest arises if it is likely that a personal interest could conflict, or be reasonably seen to conflict, with the impartial performance of our official duties and the public interest.
Paragraph [4.7] says ‘You should not use your position in the RFS for personal business benefit’.
I cannot see that talking to colleagues during a meal break about ‘what you do’ creates a conflict of interest, but trying to sell your kit could be. If the equipment you sell is bought by individuals it would be a conflict if you went with an intention of making sales, ie carried samples, the credit card swiping machine and initiated a conversation with that aim in mind. It would harder to see a conflict if in a discussion the subject came up – perhaps a colleague has one and you say ‘we make that’ and others then ask you about it. What you would do then, if someone wanted to buy one, is say ‘here’s my card, call me in a couple of weeks when we’re all back at work and we can do that then…’ rather than try to conclude a sale there and then.
Equally if the kit is something larger that is bought by the service itself, then again one can see a conflict of interest if on an interstate deployment you go to members of the other service to point out what a neat piece of kit the RFS has but not, say, the CFS and maybe they should raise that with their officers to encourage the service to buy it. It would certainly be a conflict of interest if you did that and failed to disclose that you were the manufacturer. It’s harder to see a conflict if someone sees the item and asks about it and you say ‘actually my business makes that, let me show you how it works …’
Again the issue is intention. Are you trying to use your position for your commercial gain – for personal business benefit – or just as part of a conversation?
Absolutely; that’s a classic conflict of interest. If you were anyway in a position to influence the decision to buy the equipment you would need to disclose that interest and excuse yourself from any decision making. In making a tender you would need to disclose that you are a member of the RFS so the decision makers can ensure that there is no conflict and disgruntled competitors can’t allege that the contract was offered to you as a secret deal. As the service standard says (at [4.6]-[4.8]):
Perceptions of conflicts of interest can be as important as actual conflicts of interest. Therefore, even if we do not consider that we have a conflict, it is important to consider how a reasonable person would view the situation…
If we believe that we are faced with, or could be seen to be faced with, a conflict or pecuniary interest, it is our responsibility to disclose the conflict. You must advise your manager, Director or the Commissioner who will discuss ways of resolving the conflict with you, and decide if the disclosure should be in writing. All written notifications will to be placed on the RFS’ Conflict of Interest Register.
By being upfront of one’s links with the RFS you can avoid a ‘perceived’ conflict of interest. If the RFS is going to issue your kit to members your interest should be recorded in the Conflict of Interest Register. That does not meant the RFS can’t buy your kit and issue it but it needs to be upfront and able to show others, including the Australian Competition and Consumer Commission, that the matter was dealt with in an open and transparent manner and that the decision to buy your kit was a legitimate decision, not influenced by your membership.
Remember this is a general discussion rather than specific. The Service Standard really gives the answer, raise the issue and get direction from the RFS as to what they see as acceptable and what is not, register your interest in the equipment and remain mindful of the obligations in the Code of Conduct and Ethics.